What did our Government know?

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Australia decided not to help Mamdouh Habib while he was
being held by the US. Why, asks Julian Burnside.

The United States has agreed to release an Australian citizen
from Guantanamo Bay and return him to Australia. This looks like a
small victory for democracy, but in truth it serves to highlight
the way in which our democratic freedoms have been compromised
during the past three years.

Mamdouh Habib was arrested by US forces in Pakistan in October
2001. He has been in American custody since then: in Pakistan, in
Egypt and in Guantanamo Bay, Cuba. During the 38 months Habib has
been held by America, he has been denied access to his lawyer, and
the Australian Government has done nothing to help him.

Habib has not been charged with any offence. It is clear that he
has not committed any offence against Australian law: the
legislation that might apply was not passed until nine months after
his arrest. We can assume that he has not committed any offence
against the law of Pakistan or Afghanistan, since those countries
have not sought to extradite or charge him. It seems that he has
not committed any offence against American law: if he had, he could
have been taken to America for trial, but that has not
happened.

The decision to send Habib home is the result of two US court
decisions in 2004, which appear to have upset American plans. In US
courts, evidence illegally obtained must be excluded, because the
state should not break the law. Both in American and Australian
courts, confessions obtained under duress must be excluded, because
of their inherent unreliability. Confessions obtained by use of
torture are excluded on both grounds.

The Americans planned to try Guantanamo prisoners in military
commissions that would not be bound by the ordinary rules of
evidence. Specifically, the commissions were to be able to receive
evidence of confessions obtained by use of torture.

The overwhelming inference is that the Australian Government knew or suspected that Habib had been tortured.

However, last July the US Supreme Court ruled that it had
jurisdiction to review the circumstances of detention in
Guantanamo. In November, the Federal Court for the District of
Columbia held that the military commissions violated the standards
required for fair trials. It ordered that the commissions be halted
until America complied with the Geneva Convention relating to
prisoners of war.

That ruling spelt the end of the military commissions. The
conditions under which detainees in Guantanamo have been held and
interrogated practically guarantee that any confession obtained
would be excluded from evidence in any trial that could be
described as fair.

At Guantanamo, detainees were forbidden to speak; they were
permitted two minutes a week for a shower; they were regularly
subjected to body searches, including cavity searches; they were
frequently held short-shackled for hours on end: this involves
squatting on the floor, the hands shackled between the legs and
attached to the floor by a chain so short that the detainee can
scarcely move. Detainees were held in cells in which the
air-conditioning was set to freezing temperatures. They were
interrogated while chained to the floor; they were not allowed to
go to the toilet during interrogations and would have to urinate in
their clothes. Detainees were threatened with electric shocks; they
were threatened with the prospect of being sent to Egypt or Morocco
to be tortured.

It is not hard to see why Habib is now to be released. After his
arrest in October 2001, he was sent to Egypt for six months, where
he was tortured. He was then taken to Guantanamo and interrogated
for three years. No American (or Australian) court would admit
confessions obtained by these methods.

What is really significant is the timing of his release. The
November court decision means, in substance, that evidence obtained
by use of torture would not be allowed. The Americans must then
have realised that they could never make a case against Habib. Only
then did the Australian Government ask that he be returned to
Australia.

This sequence of events raises some very disturbing questions:
How much did Australia know about the treatment of Habib? Why did
Australia not ask for his return before this - why did we wait
until evidence obtained by torture was ruled out? Why has
Attorney-General Philip Ruddock been so guarded in his comments
about the treatment to which Habib has been subjected?

The overwhelming inference is that the Australian Government
knew or suspected that Habib had been tortured, but believed that a
military commission could use evidence obtained this way.
Conditions in Guantanamo have been the subject of many reliable
reports over the past two years. From late 2002, Major-General
Geoffrey Miller was in charge at Guantanamo. In April last year, he
was exposed as the person responsible for the outrages at Abu
Ghraib prison in Baghdad. The Australian Government knew of those
events months earlier. It must have known of the mistreatment of
prisoners in Guantanamo; it must have known that the mistreatment
was designed to obtain evidence that could only be admissible in a
trial that lacked the basic requirements of fairness. And it
certainly knew that the victims of this mistreatment included two
Australian citizens. The alternative, only slightly less
disturbing, is that our Government simply did not care how the
Americans treated Australian citizens.

Guantanamo is a bad advertisement for democracy and democratic
values. It reflects badly on any government that condones it. Great
democratic principles, such as the rule of law and the right to due
process, can be traced back to the Magna Carta. In the war against
terror, it is well to remember that we are defending those
principles. In Guantanamo, those principles have been
sacrificed.